SELECTED

TOPICS FROM C.P.C

Res-judicata [Sec.11]
It means that once the matter is finally decided by a competent court or forum then no party can be
permitted to re-open it in a subsequent litigation ie, a judicial decision must be accepted as final.
Res-judicata is an important maxim mentioned in Sec.11 of CPC. Sec.300 of Cr.P.C and Art.20(2) of
Constitution.
Res-Subjudice [Sec.10]
Sec.10 of the CPC is to prevent the court of concurrent jurisdiction from simultaneously entertaining
and adjudicating upon 2 parallel litigation in respect of the same cause of action same subject
matter and same relief.
Condition
1. There must be 2 suits, one must be previously filed and other is subsequently filed.
2. The matter in issue is same in the 2 suits.
3. Both the suits must be between the same parties or their representative.
4. The previously instituted suit must be pending in a court and subsequent suit is brought in any
other court in India.
If all the conditions are fulfilled the trial of second suit will stay for the purpose of deciding the first
suit. Only the trial of second suit is stayed. A decree or a judgment passed against the provision of
Sec.10 is null and void.
Suit of a civil nature [Sec.9]
Sec.9 of the CPC enables the civil court to try all suits of a civil nature unless they are barred.
Conditions
1. Suit must be of a civil nature.
2. Such suit shall be not expressly or impliedly barred.
Civil nature implies the private rights obligations of the citizen. They are the suits relating to right to
property, right to ownership, breach of contract, suit for rent.
Suit is said to be expressly barred when it is barred by any enactment for the time being inforce.
Suit is impliedly barred when it is barred by general principles of law.
Transfer of cases [Sec.22-25]
When a suit can be instituted in more then one court it is for the plaintiff to select the forum. But if
the defendant feels with sufficient reason that he will not get a fair trial in that particular court, he
may file an application stating the reasons for such transfer and get it transferred to another court.
Difference between Decree [Sec.2(2)] & Order [Sec.2(4)]
1. A decree can only be originated in a suit or a plaint . An order originate from a suit or a petition or
an application.
2. A decree is a conclusive determination of adjudication. Order is not a final or conclusive
adjudication.
3. A decree may be final, preliminary or partly final or partly preliminary.
But an order is always a preliminary order. (at any time at any stage a Civil Court can pass an order).
4. In every suit there is one decree. There are so many orders in a suit.
5. Every decree is appealable unless or otherwise expressly provided. (Appeal is the rule, non appeal
ability is the exception. Orders are not appealable. Only those orders specified in CPC are appellable.
(Non appealability is the rule, appeal is exception).
6. In decree a second appeal lies. In an order there is no scope for second appeal (special leave
petition to Supreme Court is allowed under Act.136).
Plaint (Order VII Rule (1) & Section 26)
A civil case will originate by the presentation of a plaint by the plaintiff before a competent court. A
plaint means a statement given by the plaintiff which contain the cause of action, facts, related
materials,etc. of a particular case. Under Section 26 ‘Every Suit shall be instituted by the
presentation of plaint before a competent court’, which means the lowest competent court. The
word presentation means delivery of plaint to the competent court either personally or by a pleader.
Sending the plaint through post is not possible under CPC.
Pleadings (Order VI Rule 1)
The word pleading has a French origin. It is derived from the French term ‘Plea’ which means a suit
or action. Pleadings are the back bone of a litigation. The word pleading means a plaint or a Written
Statement. According to Section 26 of the CPC every suit shall be instituted on the presentation of a
plaint to a proper court. The written statement must also be filed by the defendant before the same
court. The plaint or Written Statement constitute the pleading in a Civil Suit.
Illustration:- Mr. A files a suit for the recovery of an estate from B. The plaint must specify the
reason for the claim and the written statement filed by the defendant ‘B’ must specify his legal rights
over the estate. The points contained in the plaint and the point contained in the written statement
together constitute a pleading thereafter court frames issues.
Written Statement (Order VIII Rule 1)
Written Statement is a replay to the plaint filed by the plaintiff. When the summons is obtained by
the defendant he may appear in a person or through a pleader duely authorized. It is the duty of the
defendant to present a written statement of his defence. A Written Statement should begin with
admission and denal of material facts alleged in the plaint by the plaintiff. If the defendant fail to file
a written statement the court award ex-party decree.
Difference between set-off & counter claim
Set-off. (Order VIII Rule-6)
1. Suppose in a suit for recovery of money by the plaintiff, the defendant find that he has also a
claim of some amount of money against the plaintiff. Then he can claim a set off in respect of the
said amount. Set-off amount is always lesser or same to the suit claim by the plaintiff.
2. Set-off must arise out of the same transaction
3. Set-off is a ground-of defense against plaintiff action (defense of shield)
Counter Claim
1. Counter claim means a claim made by the defendant in a fresh suit against plaintiff in the former
suit. It is the claim for larger amount that may exceed the plaintiff’s claim.
2. Counter claim need not arise out of same transaction.
3. Counter claim is a separate effective action (a weapon of action)
Ex-party Decree (Order IX)
When a party files his plaint in a court, court send summonse to the opposite party. When the
summonse is received by the opposite party, then he file the written statement. The date of hearing
will be mentioned in the summonse. If the defendant is absent at the date of hearing the court can
pass a decree in favour of plaintiff. Such a decree passed by the court in the absence of the
defendant is known as the exparty decree. The word “ex-party” means “absence of”.
Inherent Powers Under CPC (Sec. 151)
The primary duty of a Civil Court is to secure civil justice. The end of all laws are to give justice. If the
ordinary rules of procedure ends in injustice it is the duty of the court to over rule the injustice.
Section 151 of CPC gave power to all Civil Court to anticipate such procedural injustice and take
necessary step to remove difficulty. If there is no specific law about a particular matter the court use
the power given under Section 482 of CrPC. Only High Court can use inherent power in a criminal
case.
Caveat (Section 148-A)
The word caveat is derived from the Latin expression “cavesse” which means to “take care”.
Sometimes a party may obtain an ex-party order on an application without informing the other
party. Section 148A has been enacted to prevent such ex-party order being passed against a party
without giving notice to him. Caveat refers to an intimation to the parties interested in a particular
case.
Abatement (Order XXII)
The word “Abatement” means “the abandoning of an action”. It is a termination of proceeding in an
action for want of proper or necessary parties ex-‘A’ file a suit against ‘B’. During the pendency of
the suit ‘A’ or ‘B’ dies the suit will be abated. So abatement of a suit means abandoning of suit for
the want of proper parties.
Reference/ Review and / Revision under CPC
Reference (Section 113. Order 46)
Section 113 of CPC empowers a subordinate court to state a case and refer the same for the opinion
of High Court. Such an opinion can sought when the court itself feels some doubt about a question
of law. The High Court may make such an order as it thinks fit. The right of reference is vested on the
subordinate courts. The doubt must be on question of laws. The suit must be pending in the
subordinate court.
Review (Section 114. Order 47)
‘Review’ means reconsideration of a thing already decided by the same court. It is considered as a
judicial reexamination of a case in certain prescribed and specified circumstances. A review can be
made only by the court which passes the order. If a party to the suit discover a new and important
matter or there is a errors apparent on the face of the record or any other sufficient reasons he can
make an application before the same court. The code does not give the power to the court to review
its decision suo-motto
Revision (Section 115)
This is an exclusive power of High Court. The object of Section 115 is to correct the arbitrary illegal or
irregular exercise of jurisdiction by lower court. The High Court may call for the record of any case
which has been decided by any court sub-ordinate to such High Court. If there is a chance of appeal
no revisional power will lie.